Forced blood tests in drunk driving cases get high court review

Bloomberg

Published 8:16 pm, Tuesday, September 25, 2012

WASHINGTON — The Supreme Court agreed Tuesday to decide whether police must get a search warrant before forcing a drunken driving suspect to have blood drawn, accepting a case that will shape privacy rights on the road.

The justices said they would hear Missouri's contention that the Constitution doesn't require police to take the time to get judicial approval given how quickly alcohol dissipates in the bloodstream. The Missouri Supreme Court disagreed, saying officers typically must seek a warrant.

That decision “actually requires police officers to stand by and allow the best, most probative evidence to be destroyed during a drunk-driving investigation,” Missouri argued in its appeal. Lower courts are divided on the question.

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The case might have widespread day-to-day implications. More than 1.4 million people are arrested each year in the United States for driving under the influence, according to FBI statistics.

San Antonio, which implemented its “no refusal” program in 2008 with the District Attorney's Office, has always included a search warrant as part of the blood draw process. That was one of the major hurdles to getting it implemented on a full-time basis two years ago, First Assistant District Attorney Cliff Herberg said.

The Texas Legislature has allowed for blood draws without a search warrant for intoxication manslaughter cases, third-time DWI offenses or intoxication assault cases in which someone has been sent to the hospital. But that's different from the “exigent circumstances doctrine” — the idea that evidence needs to be collected immediately to avoid its destruction — that Missouri is arguing, Herberg said.

Tyler McNeely, the defendant in the case, was pulled over for speeding in 2010 by a state highway patrolman in southeast Missouri and refused to take a breath test after failing field sobriety tests. The officer took McNeely to a nearby medical laboratory, where a technician drew blood over his objection.

McNeely's lawyers say the Supreme Court shouldn't categorically exempt drunken driving cases from the normal rule that police must get a warrant for intrusive bodily searches.

“While every drunk-driving investigation will involve the eventual dissipation of a suspect's blood alcohol content, not every case will involve a risk of losing evidence of intoxication before search,” argued McNeely, who is represented by the American Civil Liberties Union.